Relationship Breakdown

Separation and Divorce

Separation

For a variety of reasons, some couples decide not to divorce. By simply living apart they are deemed to be separated by the Inland Revenue and by the Benefits Agency.
However, you should consider this option very carefully with the advice of your emeryjohnson solicitor who can draw up a Deed of Separation to record any agreement regarding financial matters, children and plans to divorce or not. This could be relied upon if you do decide to divorce at a later date. A court would prefer not to overturn such an agreement provided that you had both taken legal advice, been honest about your circumstances at the time and there has not been any change in your circumstances since.

Judicial Separation

If your religious beliefs do not allow you to divorce, you might consider Judicial Separation. This follows the same court procedure as divorce and you will have no legal duty to continue to live together but you will not be able to remarry.

Steps to Divorce

You must have been married for at least one year before you can apply to the court in England and Wales for your marriage to be dissolved. Additionally one of you must have been a resident in England for the 12 months immediately before your application.
You will need a copy of your marriage certificate and will be required to pay the court fee of £300 when you file the Petition (your application to the court).
At this point, you will become the Petitioner, while your spouse will be known as the Respondent. In order to obtain a divorce, you will need to demonstrate that your marriage has irretrievably broken down, by establishing the existence of one of the following:

(a) Your spouse has committed adultery* and you find it intolerable to continue to live with him/her.
(b) Your spouse has behaved in such a way that it would be unreasonable to expect you to continue live with him/her.
(c) Your spouse has deserted you for a continuous period of two years or more.
(d) You have been living apart from your spouse for two years or more and your spouse agrees to the divorce.
(e) You have been living apart from your spouse for five years or more, whether or not your spouse agrees to the divorce.

* It is no longer compulsory to name the third person in a petition based on adultery. Doing so may offer temporary satisfaction but may lead to additional resentment and your spouse being less willing to cooperate on other issues. It also means that the third person will become a party to the proceedings.

Your emeryjohnson solicitor will try to establish whether or not there is likely to be any opposition to the petition or even send a draft to your spouses solicitor to reach an agreement on the particulars to minimise objections later.

The court will send your spouse the checked and processed Petition, Statement of Arrangements and an Acknowledgement of Service Form which he or she should return to the court within seven days. If the Respondent wants to defend the divorce then they must file an Answer within 28 days of receiving the Petition. In practice, very few Respondents do defend the divorce.

If your spouse does not wish to defend the divorce, your emeryjohnson solicitor will prepare an Affidavit (sworn statement) confirming the facts of the Petition and send this with a Request for Directions to the court. This is the application for the Decree Nisi and is the first stage in obtaining a divorce.

If the judge is satisfied that the grounds for divorce are proven and she has no queries, a date will be fixed for the Decree Nisi to be pronounced in court signifying that the ground for the divorce are proven and due process of law has taken place.

Neither person has to attend the court unless your spouse contests the divorce or arrangements for any children have not been agreed.

If you do have to attend court, proceedings are usually held in private. The press are able to publish that a decree nisi has been pronounced together with your names and the basis upon which the divorce was granted but, not the actual details themselves.

Six weeks and one day after the Decree Nisi, you may apply to the court for Decree Absolute. There is no hearing and once granted, the divorce is concluded and your marriage is dissolved.

If you do not apply for the Decree absolute within three months, your spouse may do so. In this case there would be a brief hearing but you could oppose the application if, for example, when there are problems with a pension.

The process described above can take anything from four to six months but some cases, particularly those involving finance, can drag on for considerably longer.

The assistance of your experienced emeryjohnson solicitor can help to reduce your stress during this period, when disputes about children and finances can cause frustration, anxiety and distress.

Arrangements for Children

You know your children best and can best consider the effects of your break-up on them and devise the most suitable living arrangements. The law encourages couples to reach an agreement over future arrangements for their children without the need for court involvement.

Rather than considering the 'rights' of parents, family law refers to 'parental responsibility'* for a child and what used to be called 'custody' and 'access' are now known as 'residence' and 'contact'

A parent has financial responsibility for a child until s/he reaches the age of 17 or leaves full-time education, whichever is the later, regardless of whether or not there is any contact. The two issues are entirely separate and you should try to discuss them at separate times to avoid disagreements about maintenance spilling over into arguments about contact which are unlikley to be in the best interest of your child.

Before a Judge certifies that your decree nisi should be pronounced, she will consider the ‘statement of arrangements’ for children under the age of 16 or between 16 and 18 but still in secondary education, where and with whom the children live, which schools they attend, who looks after them and how often they see the other parent and whether these arrangements are agreed by your spouse.

The Judge can direct that the divorce is not to be made final until she is satisfied with arrangements made for the children and she may ask for further information or ask you both to attend an informal appointment to discuss any areas of concern.

The Judge may recommend mediation or request reports and further meetings, probably with the child(ren), at home or at a CAFCASS (Children and Family Court Advisory and Support Service for England and Wales) office. She can also check whether your child’s school has any concerns, check with doctors, Social Services, the police etc.

Although this can be a traumatic and distressing period for everyone involved, you will have your emeryjohnson solicitor’s advice and support throughout.

Agreements reached in negotiation with your spouse are more likely to work in the long term and be respected by the wider family. Family mediation services, including Resolution, together with your emeryjohnson solicitor, can help you achieve this.

If you can't agree on the arrangements, your emeryjohnson solicitor can advise you on the best way of asking the courts to decide, without letting matters relating to children get tangled up in any financial disputes.

The Children Act 1989 states that your child's welfare is the paramount consideration in any question relating to their upbringing. The court will apply a 'welfare checklist' to help it make its decision, looking at:

Your child’s wishes and feelings (in light of his/her age/understanding)
His/her physical, emotional and educational needs
The likely effect of any change in his/her circumstances
His/her age, sex, background and any other relevant characteristics
Any harm which he/she has suffered or is at risk of suffering
How capable each of parent is of meeting his/her needs

An independent Child and Family Reporter may be asked by the court to help you as parents resolve the dispute or to help the court decide.

The court can issue a number of orders including residence, contact, "Specific Issue Orders" to resolve issues such as where a child will go to school or to decide on medical treatment and "Prohibited Steps Orders" which can stop something from happening for example to stop one parent from taking the child abroad. emeryjohnson has experience in all of these areas as well as applications to remove children from the jurisdiction of the United Kingdom eg Australia.

The court will not make any order relating to a child unless it is satisfied that making an order would be better for the child than not making an order. Your emeryjohnson solicitor can provide specialist advice on all of these issues.

*If you were not married to your partner when your child was born, your spouse will not automatically have parental responsibility but can acquire it by agreement with you or by applying to a court. New rules from 1 December 2003 say that a father who is not married to the child's mother will acquire parental responsibility if he jointly registers the child's birth.

International Divorce and Child Abduction

If your partner has moved abroad, or if neither of you have lived in England for the 12 months immediately preceding your application for divorce, you will need specialist advice.

Because emeryjohnson partners are experienced in this field, you can be confident that, even in your special circumstances, your emeryjohnson solicitor has the required expertise to represent your interests.

Even when a parent moves abroad, there are ways of enforcing a maintenance order made in England, under the rules of the Hague Convention and through recipricol arrangements. Again, you can rely on your emeryjohnson solicitor’s knowledge of and experience in this subject.

If you believe your child(ren) to be at risk of abduction by your partner, let your emeryjohsnon solicitor know immediately. She will be able to advise you on applying for orders to offer your children maximum protection.

If your child has been abducted by your partner, your emeryjohnson solicitor can advise on you the international law covering this situation and work with the legal administration in other countries to represent you and secure a happy outcome which is in the best interest of your child.

Domestic Abuse

Domestic abuse covers a range of situations where one person in some way harms another person within an intimate or family relationship and can include physical or sexual violence, emotional or psychological abuse or financial controlling behaviour.

The victim and the perpetrator do not need to be heterosexual partners or even live in the same property. The Family Law Act 1996 provides protection for all victims of any domestic violence.

If violence, psychological abuse or controlling behaviour caused your separation, this may continue or even get worse. Even if your children are not direct victims of the abuse, your physical and mental safety is crucial for their wellbeing and research shows that abusive behaviour toward you can affect their emotional wellbeing.

If you need to leave your family home and it is possible for you to do so, try to collect your personal documents and belongings as, though your emeryjohnson solicitor can request through your partner’s solicitor or the courts, it may be more difficult to obtain them at a later date.

With the support and advice of your emeryjohnson solicitor, you can apply for two kinds of order to protect yourself and your children:

Non-Molestation Order - which prevents another person from harming you or your child
Occupation Order - which will indicate who can live in the family home and can direct another person to leave the home.

You have the right to be protected. If at any time you are in immediate danger, call 999 for the police. Arrangements can also be made by your solicitor for you and your child(ren) to be housed temporarily in a Refuge whilst any injunctive relief is sought.

Financial Issues

The breakdown of a marriage brings with is a whole host of financial claims.

You can negotiate a financial arrangements for the future at any time before, during or after your divorce. However issues such as maintenance may need to be resolved before an overall settlement can be reached.

Agreeing financial arrangements can be far more complex and fraught than your divorce itself and your emeryjohnson solicitor is on hand to help you identify a fair division of finances and provide options on how you might achieve this.

If you are using mediation services to help you reach an agreement, you will still need the advice of your emeryjohnson solicitor on any such agreement, which she can convert into an order recognised and enforceable by the courts.

Should you need to go to court to reach an agreement, the law is extremely flexible to allow the court to achieve fairness based on your individual circumstances. There are no rules about how much ongoing money, if any, should be paid to either spouse and the law does not, except in extreme cases, apportion blame or penalise either spouse for their behaviour during the marriage.

Under the Matrimonial Causes Act 1973, the court has wide powers to make financial orders as it sees fit and will take into account:

• the welfare of any child(ren) of the family
• the income, earning capacity, property and resources of each person
• the financial needs, obligations and responsibilities of each person
• the standard of living enjoyed by the family during the marriage
• the age of each person and the duration of the marriage
• any physical or mental disability
• the contribution made by each person to the welfare of the family, including looking after the home and bringing up children
• the conduct of each person, but only if it is so bad it would be unfair to disregard it
• any serious disadvantage to either person which would be caused by ending the marriage eg loss of pension provision

Should you have to resort to the court to settle a financial dispute, you will exchange financial details with your partner within a legal framework. This framework has been designed to encourage more agreements at an early stage to reduce the cost: both emotionally and financially.

The timing and wording of any application for an order is critical and your emeryjohnson solicitor will provide the essential advice you need.

Identifying Your Assets

The starting point for any negotiations must be a full and honest disclosure of each person's personal assets, to ensure that everything is included in the total to be fairly divided. Click here for an easy to use form to help you calculate your assets.

In most cases, the main asset will be your family home. As the needs of any children are the most important factor, the law recognises the importance of maintaining a suitable home for them. However, it is likely that there will be a number of ways to achieve this and your emeryjohnson solicitor will discuss your options and the wide powers of the courts with you.

In many cases, a pension can be an even more valuable than your family home and the law now allows a pension to be included with the assets to be fairly distributed on divorce. Even where this is appropriate, it is a complex area and the fund will not always be divided equally.

Don’t forget to contact your own former employers to ask whether you have any pension provision and check your eligibility for a state pension. In cases involving pensions, family businesses, trust funds and other investments your emeryjohnson solicitor will guide you and call upon specialist expert advice where necessary. She can request documents from your spouse’s solicitor or resort to the courts’ power to order documents to be divulged, if you do not have access to these.

Short Term Action Plan

Your aim at this stage is to keep everything as normal as possible as you adjust to your new circumstances.

Since your family home is likely to be the main asset you will be dividing, you should ensure that mortgage (or rent) payments continue to be made together with any associated policies. If you are unable to keep up the payments, you should always write to the mortgage company or your landlord at the earliest possible time.

When property is owned jointly, mortgages are normally in joint names. This means that you are jointly liable to pay the monthly installments. Your emeryjohnson solicitor will discuss with you severing ownership of the property. This is relevant in the event of death.

If the property is in your spouse's name only, let your emeryjohnson solicitor know and she will advise you on how to register a charge against the property to ensure it is not sold without your knowledge. You should also tell her if your spouse owns any other property so she can ensure that this is not sold before a settlement is agreed.

If your bank account(s)/credit card(s) are in joint names you might consider changing to accounts in sole names or agreeing with your bank to only allow certain sums to be drawn when both of you sign. Freezing accounts is also an option to be discussed with your emeryjohnson solicitor.

As soon as you separate, you will be considered as separate individuals by the Inland Revenue and you should let them know of your new circumstances.

If there is only one adult in the household, you may apply to your local council for a 25% reduction in your council tax. You may also be entitled to state benefits. Let your emeryjohnson solicitor know before you make any claim as the Child Support Agency (CSA) automatically becomes involved when there are children involved and you are receiving certain benefits. This could therefore affect any claim made through the court. As a specialist in this field, your emeryjohnson solicitor can advise what is best in your particular circumstances.

Budgeting for your new life

With an understanding of your assets and an action plan for the short term, you will need to establish your ongoing expenses.

Armed with a complete picture of your financial position, your emeryjohnson solicitor will be able to get negotiations with your spouse’s solicitor under way.

Click here for an easy to use form to help you take account of all of your ongoing needs.

As well as monthly payments, remember to include quarterly bills and annual insurance payments. It is also perfectly legitimate to include all of your normal expenditure from home decorating and car maintenance or travel expenses through the cost of keeping pets including vet’s fees to regular haircuts, daily newspapers, even birthday presents.

You may need to seek advice from mortgage consultants, IFAs etc or instruct a specialist conveyancing solicitor to deal with any property transfers. emeryjohnson has good business links with such professionals and can, at your request, recommend and refer.

Your divorce settlement

Your emeryjohnson solicitor will talk you through the various options available or possible outcomes from the court; a 'clean break', which ends the financial obligations between you and your spouse, fixed term or ongoing maintenance payments, depending on which is most suitable for your particular circumstances.

In all cases, including a clean break, maintenance remains payable for any dependent child until they reach the age of 17 or 18 or completes their full time education, whichever is later. And the courts can still award a wife (or husband) a share of the other's pension on retirement if no other provision for pensionable age can be made at the time of the clean break.

3 WAYS TO A MORE DIGNIFIED DIVORCE

Mediation

Mediation can help to reduce hostility and improve relations between you and your spouse. It can be useful when trying to sort out finances or disagreements regarding children since you are likely to have to cooperate over their care and upbringing for some years.

Mediators are impartial independent professionals whose aim is to help you find a sensible, practical solution together with your partner which you both believe is “fair”. They can give you general information about the law but they cannot give you personal legal advice.

emeryjohnson have good links with mediators in the locality and can direct or advise you of the best ones to see.

You will also need to see your emeryjohnson solicitor before your first mediation session and between sessions so she can advise you of your rights and tell you what the law would consider equitable and fair in financial matters. Once you have reached an agreement, she can draw up formal documents which could be made into a court order.

Mediation is available to clients regardless of whether you are in receipt of Legal Aid or are paying privately.

Mediation is unlikely to be suitable if domestic abuse or the risk of violence is the reason for your seeking a divorce.

Collaborative Law

Collaborative law offers a new, holistic approach to agreeing matters in divorce in a dignified, non aggressive manner. Couples, their lawyers and other professionals, work together in round table meetings to negotiate agreements to resolve financial and other issues without the involvement of the courts.

emeryjohnson has two qualified solicitors trained in Collaborative Law. Should you and your partner choose this new approach, protected by the expert advice of your emeryjohnson solicitor, you will feel you have more control over events because you don't have to let a Judge, with the wide jurisdiction of the law, make decisions on important matters.

As with all emeryjohnson cases, any children's interests will remain at the forefront throughout the process. And because neither of you is out to seek revenge or retribution, you should both be able to maintain amicable contact with each other, family and friends during negotiations and beyond.

Collaboration is only available to privately paying clients as it is not funded by the Legal Services Commission.

Conventional Representation

Even if you choose a more conventional approach, emeryjohnson solicitors are committed to helping you finalise your divorce in a constructive and sensitive way wherever possible and ensuring that disputes over money and property do not get in the way of agreeing arrangements for children.

This is done in the absence of formal mediation or collaboration ie through independent representation but is based on our experience as specialist family solicitors and members of Resolution.

Resolution is an organisation which was founded with the aim of improving the practice of family solicitors to prevent the legal process increasing acrimony between separating couples and to avoid family law being seen as just another type of litigation.

Resolution has been instrumental in driving changes to family law via the widespread adoption of its Code of Practice which sets out the principles of a non-confrontational approach to family law matters and which all members must agree to follow.

Resolution operates a specialist accreditation scheme through which members, like emeryjohnson, must demonstrate a high level of skill in family law as well as a specialist knowledge on specific family law subjects.

Resolution also pioneered mediation training exclusively for lawyers.

Like other mediation professionals, Resolution mediators aim to help separating couples achieve a constructive settlement of their differences in a way which avoids protracted arguments and promotes co-operation between parents in decisions concerning children.

Of course, at emeryjohnson we understand that not all relationships can end so amicably so if the going gets tough, you can rely on your emeryjohnson solicitor to provide powerful advocacy to fight your corner.

We also recognise that everyone’s circumstances are different and that what might be best for one person may not be for another. It is therefore important that we discuss your options thoroughly to ensure we offer the right solution for you.